Return to CALJIC Part 9-12 – Contents
F 12.06 n1 Length Of Momentary Possession: Unresolved Issues.
ALERT: People v. Martin (2001) 25 C4th 1180, 1182 [108 CR2d 599] disapproved People v. Cole (88) 202 CA3d 1439, 1444-47 [249 CR 601] and held that the defense of momentary possession only applies to momentary or transitory possession of contraband for the purpose of disposal.
The 1988 version of CJ 12.06 provided that possession is not unlawful where, inter alia, “the possession is momentary and based on neither ownership nor the right to exercise control over the item.” This instruction was founded upon People v. Mijares (71) 6 C3d 415, 423 [99 CR 139], holding that the trial court has a duty to instruct sua sponte on momentary possession where that issue is raised by the evidence.
The 1989 version of CJ 12.06 eliminated the momentary possession language in response to People v. Cole (88) 202 CA3d 1439, 1444-47 [249 CR 601]. The comment to the revised CALJIC instruction suggests that the critical issue is not the length of time of the handling but whether the defendant physically handled the substance solely for the purpose of disposal.
Cole has since been criticized in People v. Sullivan (89) 215 CA3d 1446, 1452-53 [264 CR 284]. The Sullivan court concluded that “by abandoning the requirement the possession be “fleeting,” [the Cole court] has unreasonably expanded the Mijares rule.” (Sullivan at 1452.) People v. Hurtado (96) 47 CA4th 805, 814 [54 CR2d 853] also held that the defense of momentary possession should not be expanded to lengthier possession incidental to a defendant’s intent to dispose of an item. (See also People v. Frazier (98) 63 CA4th 1307 [74 CR2d 627] [possession must be momentary: defendant who had drugs for several hours wasn’t entitled to instruction on momentary possession].)
In People v. Spry (97) 58 CA4th 1345, 1369-70 [68 CR2d 691] the court of appeal stated that CJ 12.06, which includes Cole’s expansive language concerning length of time of momentary possession, correctly states the elements of the Mijares defense.
Hence, the question of whether the possession must be momentary or fleeting remains unresolved.
SUBSEQUENT HISTORY: FORECITE discussed the Sullivan case in its first newsletter in July 1990. The January, 1991 CALJIC supplement identified the Sullivan case and observed that the trial court must choose between CJ 12.06 as found in the bound volume and the 1989 revision.
F 12.06 n2 When Momentary Possession Is To Prevent Seizure By Law Enforcement.
CJ 12.06 states that momentary possession is unlawful if it is “for the purpose of preventing … imminent seizure by law enforcement.” However, the cases do not support this proposition.
It is true that if the defendant disposed of the substance for the purposes of avoiding its seizure by law enforcement, it could be inferred that the defendant at one time exercised physical dominion over the substance. (People v. Mijares (71) 6 C3d 415, 422 [99 CR 139]; see also People v. Sonleitner (86) 183 CA3d 364, 370 [228 CR 96]; People v. Rand (72) 23 CA3d 579, 584 [100 CR 473].) However, the fact that such an inference could be made by the trier of fact, does not mean such an inference must be made. Depending on the evidence, the jury certainly would be permitted to infer that the defendant did not previously possess the substance and that his disposal of it was to protect that co-defendant from prosecution. Under the logic of Mijares, the defendant in such a case would be guilty of the destruction or concealment of evidence (PC 135) but not possession of the substance. (See Mijares, 6 C3d at 422.)
Hence, CJ’s conclusion that the defendant is always guilty of possession when the momentary possession was to avoid seizure by law enforcement is erroneous and should be deleted from the conditions set forth in CJ 12.06. Rather, such a factor should be considered by the jury in determining whether to infer that the defendant exercised dominion over the substance at a prior time.
(But see FORECITE F 12.06b.)
F 12.06 n3 Momentary Possession Insufficient Without Evidence Of Assent To Buy.
U.S. v. Kitchen (7th Cir. 1995) 57 F3d 516 held that even though the defendant picked up the drugs for a few seconds during a “reverse buy,” such momentary possession is insufficient to convict for a possessory offense absent unequivocal conduct showing assent to the transaction.
F 12.06 n4 Momentary Possession: Defendant’s Burden Of Proof Must Be Specified.
People v. Spry (97) 58 CA4th 1345, 1369-70 [69 CR2d 691] held that the lawful possession /momentary possession doctrine is an affirmative defense and, as such, the defendant has the burden of proving the existence of this defense by a preponderance of the evidence. The failure of CJ 12.06 to instruct the jury on both the assignment and magnitude of the burden of proof may be reversible error where it is possible the jury applied a burden of proof substantially different in nature from the defendant’s limited constitutional burden of establishing the defense by a preponderance of the evidence. (Spry, 58 CA4th at 1371.)
Although CJ 12.06 correctly instructs the jury on the elements of the defense, the current instruction is incomplete in its failure to identify which party has the burden of meeting the four conditions, and the level of burden required to establish the conditions. (Id. at ____. See People v. Hurtado (96) 47 CA4th 805, 811-14 [54 CR2d 853].)
F 12.06 n5 Momentary Possession: Weapons Exceptions.
The Legislature has now codified the principle of transitory possession as a “safe harbor” to protect persons who possess weapons with the intent of turning them over to police, providing that certain conditions are met. (PC 12020(b)(16).)
PC 12026.2(a)(17) to (a)(20) creates an exception to PC 12025, providing that the law enforcement agency has received prior notification that a firearm would be transported. In order for the exceptions to apply, the firearm must be unloaded, kept in a locked container, and the course of travel to the police agency cannot include unnecessary deviations. (PC 12026.2(b).)
PC 12021(h) creates an exception (“justifiable” violation) to PC 12021 if certain requirements are met. The “justifiable” violation is an affirmative defense which must be proved by the defendant by a preponderance of the evidence and is a question for the trier of fact. (PC 12021(h)(3); PC 12021(h)(2).) The possessor must have given the police agency prior notification of the transportation to benefit from the “justifiable” violation clause.
F 12.06 n6 Momentary Possession Defense: Not Applicable To Prison Inmates (PC 4502).
People v. Brown (2000) 82 CA4th 736 held that CJ 12.06 allowing possession of contraband for purposes of abandonment, disposal or destruction did not apply to a prison inmate who claimed to have picked up a weapon in the prison yard to dispose of it. “The factors which may militate toward temporary possession for disposal purposes or for the protection of others as recognized in People v. Hurtado (96) 47 CA4th 805 do not apply in a penal institution.” (Brown, 82 CA4th at 740.)
However, the Brown court suggested that there may be other circumstances under which temporary possession would be justified in prison. (Ibid.) One such circumstance was identified in People v. Saavedra (2007) 156 CA4th 561 where the prisoner was under imminent mortal attack, had no opportunity to seek protection of the authorities, and temporarily seized a prohibited weapon in order to save his life.
Momentary Possession: Prosecution Should Have Burden Of Proof
*Replace CJ 12.06 with the following:
Evidence has been presented that the defendant’s possession of the ______________ [drugs, firearm] was only temporary. Such temporary possession is not unlawful unless the prosecution has proven beyond a reasonable doubt that:
1. The possession was based on the defendant’s ownership or right to exercise control over the ____ [drugs, firearm] and
2. The ____ [drugs, firearm] was possessed for a purpose other than disposal, abandonment or concealment.
Points and Authorities
In its 1999 revision, CALJIC provided for the first time that momentary possession for the purpose of disposal is an affirmative defense upon which the defendant bears the burden of proof. This was based on People v. Spry (97) 58 CA4th 1345, 1369-70 [68 CR2d 691]. People v. Martin (2001) 25 C4th 1180, 1192 [108 CR2d 599] also cited this portion of Spry. (Martin, 25 C4th at 1192 fn 10.)
However, the defense at issue in Spry and Martin was the broader Cole (People v. Cole (88) 202 CA3d 1439 [249 CR 601]) extension of Mijares (People v. Mijares (71) 6 C3d 415 [99 CR 139]) and not a true Mijares situation. Hence, Spry’s conclusion that the burden was properly placed on the defendant — although proper for the Cole extension — is not relevant to a true Mijares case where there is momentary possession for the purpose of disposal. (See People v. Dillon (83) 34 C3d 441, 473-74 [194 CR 390] [cases are not authorities for propositions not considered].) In other words, because Martin invalidated the Cole/Spry extension of Mijares, it did not address or resolve the burden of proof in a true Mijares situation.
In this regard, People v. Mijares (71) 6 C3d 415 [99 CR 139] is the controlling authority. There, the Supreme Court held that the trial court committed reversible error when it failed to instruct the jury that “the possession prohibited by . . . the code does not include merely handling for only brief moments prior to abandoning the narcotic.” (Id., at 423.) In so holding, the court did not impose any burden of proof on the defendant. To the contrary, the court made clear that the momentary handling of contraband for the purpose of disposal simply does not constitute possession within the meaning of the statutes proscribing possession of contraband. (Id., at 419-420.)
In other words, Mijares reads a substantiality or nontriviality requirement for possession into the statute. (Cf. People v. Leal (66) 64 C2d 504, 511-512 [50 CR 777] [setting forth a different substantiality/nontriviality requirement in narcotics possession laws].) That is also what another California statute would prescribe: CC 3533 [“The law disregards trifles]. CC 3533 has been extant since 1872; the possession of controlled substance statutes came later. As standard law of statutory construction, it is thus presumed the Legislature enacted the latter knowing of the former, with the former in mind, and intending to rely on the former. (See FORECITE CHK IV [Rules Of Statutory Construction].) Furthermore, also as standard law of statutory construction, statutes must be read together to create a harmonious statutory scheme. (See FORECITE CHK IV.) Thus, California statute and basis statutory construction interpretation confirm this reading of HS 11350 and related statutes: Those possession statutes simply do not apply to transitory possession for the sole purpose of destruction, because such trivial or instantaneous possession doesn’t rise to the level of possession that is proscribed by the statute.
In sum, a fleeting possession of narcotics with the sole purpose of destroying it, as anticipated by Mijares, doesn’t rise to the level of dominion and control, i.e., care and management of the narcotics, that is required under a statute proscribing possession of contraband. (See e.g., cases from other jurisdictions Mijares cites which are clearly to that effect.) Because the Mijares rule negates an essential element of the charge, the burden should fall on the prosecution to prove that the Mijares rule does not apply.
As the Supreme Court has held, when a defendant presents a factual contention to negate an element of the charged offense, the defendant need only leave the jury with a reasonable doubt as to the existence or nonexistence of the element. (People v. Tewksbury (76) 15 C3d 953, 963 [127 CR 135].) For example, when a defendant claims that he killed in self defense, the government bears the burden of disproving the defense. (People v. Adrian (82) 135 CA3d 335, 340-341 [185 CR 506].) This is so since “self-defense goes directly to guilt or innocence. [Citations.]” (Id., at 340.)
Here, momentary possession in a true Mijares situation clearly goes directly to the element of possession. Thus, while the defense may bear the burden of showing substantial evidence in support of a Mijares instruction, the burden should remain on the prosecution to disprove the defense.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
Temporary Possession Defense Applies
Even Though the Contraband Was Abandoned/Discarded
For The Purpose Of Concealment From The Police
ALERT: People v. Martin (2001) 25 C4th 1180, 1192 [108 CR2d 599] approved the version of CJ 12.06 which precludes momentary possession as a defense if control was exercised to prevent seizure by law enforcement. However, the question presented below was never directly addressed nor resolved in Martin. (See People v. Dillon (83) 34 C3d 441, 473-74 [194 CR 390] [cases are not authority for propositions not considered].)
*Modify CJ 12.06 as follows:
[Delete last element precluding temporary possession defense when control is exercised to prevent seizure by law enforcement.]
Points and Authorities
Element four of CJ 12.06 provides that the momentary possession defense does not apply if the contraband was abandoned or discarded for the purpose of concealing it from the police. This principle is contrary to Supreme Court precedent.
In People v. Mijares (71) 6 C3d 415 [99 CR 139], the Supreme Court stated the rule that “the possession prohibited by . . . the code does not include merely handling for only brief moments prior to abandoning the narcotic.” (Id., at 423.) In support of this rule, the court favorably cited the earlier case of Jennings v. Superior Court (67) 66 C2d 867 [59 CR 440]. There, a defendant ran and abandoned a narcotics kit as the police approached him. (Jennings, supra, 66 C2d at 871.) Obviously, by citing Jennings as a case where the momentary possession defense was applicable, the Supreme Court has indicated that concealing contraband from the police does not ipso facto preclude use of the momentary possession defense. (Mijares, supra, 6 C3d at 421; categorizing Jennings as a case where “[w]e granted a writ directing the magistrate to permit defendant, as a defense to possession, to introduce evidence concerning the fleeting purpose of his taking the narcotics outfit and casting it over the fence.”)
Notwithstanding the foregoing, it is, of course, permissible for a trier of fact to infer in a particular case that disposal of contraband proves antecedent possession. (Mijares, supra, 6 C3d at 422.) However, such a permissible inference is something quite different from the mandatory presumption stated in CJ 12.06.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
The Instruction Violates The Due Process And Trial By Jury Clauses Of The Federal Constitution (6th and 14th Amendments)
Accordingly, the language of CJ 12.06(4) takes a permissible inference and transforms it into a mandatory presumption in violation of the federal Constitution. (County Court of Ulster County v. Allen (79) 442 US 140, 157-159 [60 LEd2d 777; 99 SCt 2213]; People v. Roder (83) 33 C3d 491, 496-504 [189 CR 501].) Thus, in a case where CJ 12.06(4) is used, it should be contended that the instruction is violative of the federal Constitution.
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-764a & B-764b.] Ask for Brief Bank # B-764a & B-764b.]
Momentary Possession: Even If Defense Not Proven; Prosecution
Must Still Prove Elements Of Charge And Jury Must Consider Evidence Of Momentary
Possession As To The Elements
*Add to CJ 12.06:
a. Even if the defendant does not prove momentary possession, the prosecution must still prove every element of the charge beyond a reasonable doubt.
b. In deciding whether the prosecution has met its burden to prove every element beyond a reasonable doubt, you must consider all the evidence, including that which relates to the defense of momentary possession, even if you conclude that the defendant did not prove the defense.
The defendant’s burden as to this defense does not in any way relieve the prosecution of its burden to prove every element of the charge beyond a reasonable doubt.
Points and Authorities
(See FORECITE F 4.000a.)
Unintentional Possession/Momentary Possession
*Replace to CJ 12.06 with the following when appropriate:
When a person possesses ______________[insert type of contraband] without knowing that [he][she] has possession of it and [he][she] later learns that [he][she] has possession, [he][she] does not automatically violate the law. The person violates the law only if [he][she] intentionally continues to possess the ______________[contraband] without taking immediate steps to relinquish possession of it.
Points and Authorities
When the defendant’s temporary possession is unintentional — e.g., where unknowing possession is discovered — the defendant has a right to an instruction which informs the jury that unintentional temporary possession is not a violation of the statute. (People v. Jeffers (96) 41 CA4th 917, 924 [49 CR2d 86].) For example, in U.S. v. Smith (9th Cir. 2000) 217 F3d 746, 750 it was reversible error to refuse the following instruction:
“If you find … [t]hat prior to learning that the firearm shot automatically more than one shot, without manual reloading, by a single function of the trigger, the defendant believed it was semiautomatic firearm (i.e., a firearm which requires a function of the trigger for each shot) and, upon learning that the firearm shot automatically more than one shot, without manual reloading, by a single function of the trigger, promptly initiated action to have the firearm modified to a semiautomatic firearm, you should find the defendant not guilty.”
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]